Texas Chainsaw Prosecution

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from The Wall Street Journal,

Criminalizing politics hits a new low with the Rick Perry indictment.

Prosecutorial abuse for partisan purposes is common these days, and the latest display is taking place in the all-too-familiar venue of Austin, Texas. On Friday a Travis County prosecutor indicted Governor Rick Perry for the high crime of exercising his constitutional right to free speech and his legal power to veto legislation.

Lest you think we oversimplify, read the two-count indictment. It’s all of two pages. It charges Mr. Perry with abusing his office by “threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney.”

Yes, that’s all they’ve got. Usually when prosecutors want to use the criminal statutes to cripple a political opponent, they come up with at least some claims of personal or political venality. In this case the D.A.’s office is trying to criminalize the normal process of constitutional government.

You can disagree with his decision, as many in the media and politics did, but that is a political dispute. Even if Mr. Perry was motivated by political animus toward the public-integrity unit, which has a history of politicized prosecutions, so what? A Texas Governor under the state Constitution has wide veto power. The legislature lacked the votes to override the veto.

The indictment’s absurdity is also underscored by its claim that Mr. Perry “knowingly misused government property,” referring to the $7.5 million in appropriated funds. The relevant Texas statute on misuse of public property requires “custody” of the property. Mr. Perry never had control over the $7.5 million before or after his veto. It was simply unspent public money.

As for the charge that he tried to coerce Ms. Lehmberg, Mr. Perry was exercising his First Amendment right to speak his mind about a public spending decision. This is what politicians are elected to do. The indictment and its interpretation of Texas law thus violate the Governor’s First Amendment right to free political speech.

Democrats who are defending the indictment claim that political revenge isn’t a motive because Ms. Lehmberg recused herself and the charges were brought by a grand jury convened by special prosecutor Michael McCrum. But the tactic of using a special prosecutor to disguise political motives is common. Milwaukee County District Attorney John Chisholm did the same to put a patina of respectability on his secret probe of Wisconsin Governor Scott Walker.

The larger political context is that the Travis County D.A.’s office is one of the last redoubts of liberal Democratic governance in conservative Texas, and it has a history of partisan prosecutions that fail in court. In 1994 Senator Kay Bailey Hutchison was acquitted shortly after her trial began for misusing her former office as Texas treasurer. And in 2013 a Texas appeals court overturned the campaign-finance conviction of former House Majority Leader Tom DeLay. Both Republicans endured enormous personal expense and no small amount of anxiety that they could have gone to jail on false charges.

Mr. Perry has denounced the prosecution as politically motivated, and he too is likely to be vindicated. But the indictment will still do political harm because it comes when he is attempting to re-emerge as a potential GOP candidate for President after his failure in 2012. Until the indictment is tossed, it will hang over his candidacy and complicate the task of raising campaign money.

Because the indictment has already been issued, Mr. Perry cannot file a federal civil-rights countersuit against the Texas prosecutors in their official capacities as two targets of the Wisconsin probe have against their prosecutors. But he can still file such a civil-rights action against Mr. McCrum and other prosecutors in their personal capacities. He should consider doing so.

Too many prosecutors figure they have nothing to lose in bringing even frivolous corruption charges against politicians because the public won’t remember if they fail. Think of the Justice Department prosecutors who cost Alaska Senator Ted Stevens his Senate seat in 2008 by withholding exculpatory evidence. Targeting the property and personal savings of prosecutors might start to deter some of this abusive behavior.

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